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J U D G M E N T WITH CIVIL APPEAL NOS. 5005, 5025, 5026, 5027 & 5028 OF 2002 B.N. AGRAWAL,J.

These appeals by special leave have been filed by appellant-Company against judgment rendered by Aurangabad Bench of Bombay High Court in writ applications whereby Award made by Industrial Court, Aurangabad, in the individual complaints filed by respondents-workmen has been modified. The short facts are that the respondents-workmen, 1197 in number, who were in employment of the appellant-Company in its factory at Bajaj Nagar, Waluj, within the District of Aurangabad, filed individual complaints before the Industrial Court at Aurangabad, under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as `the 1971 Act') complaining thereunder that unfair labour practices enumerated in Item Nos. 5,6,9 and 10 of Schedule IV appended to the 1971 Act were employed by the appellant-Company in the establishment in question. According to the workmen, they were appointed as welder, fitter, turner, mechanic, helper, grinder, etc., and were working since the year 1990 and used to be granted employment in each year for about a period of seven months and after expiry of the said term their services used to be discontinued, which practice went on for a period of seven years till before filing of the complaints by them in the year 1997. It was stated that a rotation system was followed by the appellant-Company whereby different set of workmen came to be appointed by rotation displacing the workmen appointed earlier which was indicative of the fact that work of permanent nature was available with the appellant-Company, but the rotational system was introduced by it with a view to deprive the workmen of rights and privileges of permanent employees so that they may not be entitled to claim benefit of permanency on completion of 240' days uninterrupted service in the aggregate in any establishment during a period of preceding twelve calendar months as envisaged under rule 4C of the Model Standing Orders which was applicable to the establishment in question. The appellant-Company contested claims of the workmen by stating that conditions of employment of the workmen were governed by the Standing Orders, duly certified on 10th March, 1986 by the Certifying Officer under the provisions of the Industrial Employment (Standing Orders) Act, 1946 (hereinafter referred to as `the 1946 Act') wherein there was no provision akin to rule 4C of the Model Standing Orders. According to the appellant-Company, it had employed 4250 workmen on permanent basis so as to meet the requirement of normal production. However, due to periodical fluctuations of a temporary nature in the quantum of production at the factory from time to time, dictated by the conditions at the national and international market, to which the said establishment is exposed, the work force is increased or decreased. In order to meet the fluctuations, the appellant-Company was required to employ workmen on temporary basis and, so also, as to when production decreased, it was required to terminate services of the temporary workmen. Further, as, undisputedly, none of the workmen had worked continuously for 240 days, much less during a period of preceding twelve calendar months, they were not entitled to claim any benefit on that count.

10-C: Not incorporated THE SCHEDULE Matters to be provided in Standing Orders (Model Standing Orders and Amendments) under this Act.

10-C: Employment or re-employment for probationers or badlis or temporary or casual workmen, and their conditions of service.

INDUSTRIAL EMPLOYMENT (STANDING ORDERS) CENTRAL RULES, 1946 SCHEDULE I Model Standing Orders Rule 4C: Not incorporated BOMBAYINDUSTRIAL EMPLOYMENT (STANDING ORDERS) RULES, 1959 SCHEDULE 1 Model Standing Orders Rule 4C: A badli or temporary workman who has put in 190 days' uninterrupted service in the aggregate in any establishment of seasonal nature or 240 days "uninterrupted service" in the aggregate in any other establishment, during a period of preceding twelve calendar months, shall be made permanent in that establishment by order in writing signed by the Manager, or any person authorised in that behalf by the Manager, irrespective of whether or not his name is on the muster roll of the establishment throughout the period of the said twelve calendar months.

Explanation.- For purposes of this clause any period of interrupted service, caused by cessation of work which is not due to any fault of the workman concerned, shall not be counted for the purpose of computing 190 days or 240 days, or, as the case may be, for making a badli or temporary workman permanent.

From a bare perusal of the relevant provisions of the 1946 Act, promulgated by the Parliament, it would appear that the very title of the Act requires the employers in industrial establishments formally to define conditions of employment under them. Preamble to the Act shows that it was found expedient to require employers in industrial establishments to define with sufficient precision the conditions of employment under them and to make the said conditions known to the workmen employed by them. This shows that the conditions of employment of workmen in an industrial establishment are required to be defined by the employer in accordance with the procedure prescribed under the 1946 Act and the rules framed thereunder. Under Section 3, within a period of six months from the date on which the Act becomes applicable to an industrial establishment, every employer has no option but to submit to the Certifying Officer draft standing orders proposed by him for adoption in his industrial establishment. Sub-section (2) of Section 3 lays down that provisions shall be made in such draft for every matter set out in the Schedule which may be applicable to the industrial establishment, and where model standing orders have been prescribed, shall be, as far as is practicable, in conformity with model standing orders. Under Section 4 draft standing orders shall be certifiable if provision is made therein for every matter set out in the Schedule which is applicable to the industrial establishment and the same are otherwise in conformity with the provisions of the Act inasmuch a duty has been cast upon the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any draft standing orders. Under Section 5 the certifying officer is required to give notice to the parties concerned inviting their objections. Upon receipt of the objection, if any, the certifying officer is required to pass an order certifying the draft standing orders as it is or with any modification or addition. Section 6 provides for an appeal against the order of certifying officer. Section 7 lays down that the standing orders so certified shall become operative on the expiry of 30 days from the date on which authenticated copies of the certified standing orders are sent to the employer and to the trade union or other prescribed representatives of the workmen and in case an appeal is preferred, within 7 days from the date on which copies of appellate order are sent to the aforesaid persons. According to Section 10, the standing order so certified shall not be liable to modification unless agreed to by the parties by making an application to that effect before the certifying officer any time after the expiry of period of six months from the date the certified standing orders came into operation, which shows that once standing orders are certified, no modification whatsoever is permissible unless both the parties consent to the same. Under Section 13(1), if an employer fails to submit draft standing orders for certification, he shall be liable to be prosecuted. So far as the State of Maharashtra is concerned, drastic amendments in the 1946 Act have been made by the State Legislature by virtue of Industrial Employment (Standing Orders) (Bombay Amendment) Act, 1957 and Industrial Employment (Standing Orders) (Maharashtra Amendment) Act, 1974. The State Legislature amended the title of the 1946 Act to provide rules defining with sufficient precision certain conditions of employment in industrial establishments in the State of Maharashtra. It also amended Preamble of the 1946 Act as it was found expedient to provide for defining with sufficient precision certain conditions of employment in industrial establishments in the State of Maharashtra and certain other matters. By Section 2(1-a) the expression `amendments' has been defined in relation to model standing orders to mean any amendments proposed to such orders under Section 3 and includes any alterations, variations or additions proposed thereto. Under Section 2(ee), as inserted by State amendment, the expression `model standing orders' was defined to mean standing orders prescribed by Rules framed under Section 15. Section 2A(1) lays down that where the Act applies to an industrial establishment, the model standing orders for every matter set out in the Schedule applicable to such establishment shall apply to such establishment from such date as the State Government may by notification in the Official Gazette appoint in this behalf and the State Government has appointed 15th of January, 1959 to be the date for the purposes of the said sub-section. This shows that model standing orders, prescribed by Bombay Industrial Employment (Standing Orders) Rules, 1959 framed under Section 15 by the Government of Maharashtra, ipso facto would be applicable with effect from 15th January, 1959. In Section 3 of the 1946 Act, as amended by the State Legislature, a complete departure has been made vis-`- vis Section 3 of the 1946 Act. Under the 1946 Act, as stated above, there is a compulsion upon the employer to submit draft standing orders for certification failing which he entails penalty of prosecution under Section 13(1) whereas under Section 3, as amended by the State Legislature, there is no such requirement and consequently no penalty provided under Section 13(1) in view of the fact that by virtue of sub-section (1) of Section 2A the model standing orders ipso facto apply to the industrial establishment from the date enumerated in the notification issued by the State Government. However, under Section 3, if the employer or any workman employed in an establishment intends any amendment in the model standing orders, in that eventuality alone any of them may submit to the Certifying Officer such draft amendments for adoption in such industrial establishment within six months from the date on which the model sanding orders applied to the industrial establishment under sub section (1) of Section 2A. This shows that it is not imperative either on the employer or the workmen to apply for amendments in the model standing orders, but it is optional. However, even this step on their part is controlled by the proviso to Section 3(1) which lays down that no amendment which provides for deletion or omission of any rule in the model standing orders relating to any matter set out in the Schedule shall be submitted under this Section. Proviso mandates the employer as well as the workmen not to seek any amendment which has the effect of deleting or omitting any rule in the model standing orders relating to any matter set out in the Schedule. If there is a mandate upon a party not to apply for such amendment, the certifying officer in the purported exercise of power under Section 5 cannot assume jurisdiction to grant such an amendment as the same will be in flagrant violation of legislative mandate which is in the form of a negative command.

It would be relevant to state that Item No. 10-C has been incorporated in the Schedule of 1946 Act by the State Legislature in the year 1974 with effect from 2nd October, 1977 which enumerates matters to be provided in the model standing orders in relation to "employment or re-employment of probationers or badlis or temporary or casual workmen, and their conditions of service". By virtue of Bombay Industrial Employment (Standing Order) (Amendment) Rules, 1977, which were published in the Bombay Gazette on 28th September, 1977 and came into force with immediate effect, rule 4C was incorporated in the model standing orders which lays down that a temporary workman, who has put in 240' days uninterrupted service in the aggregate in any establishment during a period of preceding twelve calendar months, shall be made permanent in that establishment by order in writing signed by the manager or any person authorised in that behalf by the manager, irrespective of whether or not his name is on the muster roll of the establishment throughout the period of said twelve calendar months. Rule 4C in the model standing orders has been incorporated relating to the matter set out in Item No. 10-C of the Schedule, as such deletion of the said rule by the certifying officer, being in the teeth of legislative command incorporated in proviso to Section 3(1), was wholly without jurisdiction and would make the order of certifying officer to that effect null and void and liable to be disregarded as it is well settled that if an order is null and void, the same can be disregarded in collateral proceeding or otherwise. Reference in this connection may be made to decision of this Court in the case of Dhurandhar Prasad Singh v. Jai Prakash University and Ors. JT 2001(5) SC 578. By Section 4 of the 1946 Act, as amended in 1956 by the Parliament, which is not applicable to the State of Maharashtra, as would appear from the State amendment, a duty has been cast upon the certifying officer and appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any draft standing orders which have been submitted before the certifying officer. Thus the provision in the 1946 Act being much more wider, the question of fairness or reasonableness of the draft standing orders submitted for certification is required to be considered by the aforesaid authorities. So far as the State of Maharashtra is concerned, no such discretion has been at all given either to the certifying officer or the appellate authority in view of the fact that Section 4 has been deleted by State Amendment. This shows that provisions of the 1946 Act as are applicable to the State of Maharashtra are more stringent as the model standing orders are ipso facto made applicable to industrial establishments within the State of Maharashtra from 15th of January, 1959 as notified by the State Government and no such amendment can be made in the model standing orders which may have the effect of deleting or omitting any of the rules therefrom in relation to matters enumerated in the Schedule. In support of the submission that wherever there are certified standing orders of an industrial establishment, the rules thereof shall govern service conditions of the workmen in that establishment and not the rules in the model standing orders, learned counsel appearing on behalf of the appellant placed reliance upon the decision of this Court in the case of Dunlop India Ltd. v. Their workmen (1972) 3 SCC 616 wherein it has been laid down that upon certification, it is rules in the certified standing orders which shall be binding on the employer as well as the workmen which would obviously mean that the workmen will not be bound by rules in the model standing orders. Reliance has been also placed upon another decision of this Court in the case of The United Provinces Electric Supply Co. Ltd. v. T.N.Chatterjee & Ors. AIR 1972 SC 1201 wherein it has been laid down that the certifying officer and the appellate authority are duty bound to examine the question of fairness or reasonableness of the provisions of draft standing orders at the time of considering the same for its certification. In our view, ratio decided in none of the two decisions, is applicable in the present case as the first case related to industrial establishment which was within the State of West Bengal and the other one Uttar Pradesh where no drastic amendments were made by the State Legislature as were made by the State Legislature in Maharashtra. Learned counsel next relied upon the decision of this Court in the case of Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union & Ors. (1999) 1 SCC 626 which was a case brought to this Court from Maharashtra where before this Court on behalf of the workmen, argument was advanced that in the certified standing orders, no departure could be made either in principle or policy, from the model standing orders. There, according to model standing orders, an employee of the corporation could be represented in the disciplinary proceeding by an employee of another establishment with the only restriction that he should be an office bearer of a trade union but in the certified standing orders, provision was made that an employee of the corporation could be represented in the disciplinary proceeding only by another employee of that very corporation. The prayer for certification was refused by the Certifying Officer but granted by the appellate authority. When the matter was taken to the Bombay High Court in writ, order passed by the appellate authority was set aside and the order of rejection of Certifying Officer restored. Thereafter, on appeal being preferred before this Court by the management, the order of appellate authority granting certification was restored holding that such an amendment in the model standing orders was permissible. In the said case, what was proposed was variation of the rule in the model standing orders by suitably amending the same and not the deletion or omission of any rule from the model standing orders. What is barred under Section 3 of the 1946 Act is deletion or omission of any rule from the model standing orders relating to any matter set out in the Schedule. In the case on hand, the amendment allowed was not for suitably modifying the rules of the model standing orders but for deleting the same which is impermissible. Thus the ratio, laid down in the case of Bharat Petroleum Corporation Ltd. (supra) does not run counter to the submission of learned counsel appearing on behalf of the workmen.